Bombay High Court
Krishnalal Santram Mendru Thro. G.P.A. ... vs Sakharam Dagadu Zambre Lrs Gangabhar ... on 3 March, 2025
2025:BHC-AUG:6001
1 sa549.17 judgment
IN THE HIGH COURT OF JUDICATURE OF BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO. 549 OF 2017
WITH
CA/10768/2017 IN SA/549/2017
(STAY APPLICATION)
WITH
CA/12612/2023 IN SA/549/2017
(CANCELLATION OF INTERIM RELIEF)
Krishnalal Santaram Mendru,
Age : 83 years, Occ : Nil,
R/o : Karalewadi, Tq. Rahuri,
District : Ahmednagar.
Through : GPA holder
Narendra Ashok Mendru,
Age : 30 years, Occ; Service,
R/o; Rahuri Factory,
Tq. Rahuri, District : Ahmednagar. ...APPELLANT.
(Orig. Defendant)
VERSUS
Sakharam Dagadu Zambre,
Deceased Through L.R.s.
1) Gangadhar Sakharam Zambare
Age : 55 years, Occ. Labour,
R/o; Chinchvihire, Tq. Rahuri,
District : Ahmednagar.
2) Rajendra Sakharam Zambre,
Age; 53 years, Occ; Labour,
R/o; Mohewadi, Tq.Dhule,
District : Dhule.
3) Gorak Sakharam Zambre,
Age : 51 years, Occ : Labour,
R/o : Golewadi, Tq.Karhad,
District : Satara. ...RESPONDENTS.
(L.R.s, of Orig. Plaintiff)
................
Mr.N.B. Patekar : Learned Advocate for Appellant
Mr.R.B.Temak : Advocate for Respondents
...............
2 sa549.17 judgment
CORAM : S. G. CHAPALGAONKAR, J.
Date : 03.03.2025
JUDGMENT :
1. Appellant (Original Defendant) impugns judgment and
decree dated 03.05.2017 passed by learned District Judge-7,
Ahmednagar in Regular Civil Appeal No. 459 of 2014, thereby
upholding judgment and decree dated 04.10.2014, passed by Civil
Judge, Junior Division, Rahuri in Regular Civil Suit bearing No. 392
of 2006.
2. Respondent/Original Plaintiff instituted RCS No. 392 of
2006 seeking relief of redemption of mortgage in respect of land
bearing Block No. 789, ad-measuring 1 H 21 R, situated at village
Devlali Pravara, Tq. Rahuri, District Ahmednagar. Plaintiff contends
that suit land is his ancestral property. He was in need of money for
his domestic difficulties, therefore, he approached defendant to
advance amount of Rs. 3,500/- and executed registered document
dated 04.05.1970, in form of mortgage by conditional sale. Period of
mortgage was 12 years against mortgaged amount of Rs. 3,500/-.
Possession was handed over to defendant. Defendant had agreed that
plaintiff can redeem mortgaged property by making re-payment of
mortgage money of Rs. 3,500/- within 12 years. After expiry of 12
years, plaintiff offered amount of Rs. 3,500/- to defendant but he
avoided to receive the same. Lastly, plaintiff issued legal notice on
16.08.2006 to defendant calling upon him to receive mortgage amount
3 sa549.17 judgment
and to execute redemption of mortgage. However, on 31.08.2006
defendant gave false reply and refused to redeem mortgage and to
hand over possession of suit property.
3. Defendant refuted plaintiff's claim contending that
plaintiff proposed him to sell suit land with condition of re-purchase.
Accordingly, he purchased suit land for a consideration of Rs. 3,500/-
under registered document of sale, with condition of re-purchase. In
difference to said document, he was put into possession. Plaintiff
failed to re-purchase suit land from defendant by making payment of
Rs. 3,500/- within 12 years. Eventually, sale became absolute.
Plaintiff's claim that transaction was mortgage by conditional sale is
false. Plaintiff or anybody from his family never offered repayment of
amount within stipulated period. Suit is filed beyond period of
limitation. According to defendant, he gave reply to plaintiff's notice
dated 16.08.2006. Inadvertently, he used word mortgage in his reply,
although, transaction was of sale with condition of re-purchase.
4. Trial Court framed issues, recorded evidence of parties
and concluded that transaction between parties was mortgage by
conditional sale, finally decreed the suit for redemption of mortgage.
In appeal by defendant, learned District Judge concurred with
findings of trial Court and confirmed decree. Hence this Second
Appeal.
5. Mr. M.B. Patekar, learned Advocate appearing for
4 sa549.17 judgment
appellant/defendant vehemently submits that Courts below have
recorded perverse finding that transaction between parties was
mortgage by conditional sale. According to him, document is clearly
titled as sale-deed with condition of re-purchase. Relation of creditor
and debtor is not discernible from document. It no where suggests
transfer of land was by way of security to loan. Since plaintiff failed to
abide by condition of repayment of consideration amount and get sale
deed executed in his favour within stipulated period, the sale attained
finality. Plaintiff has lost his right of re-purchase in terms of
agreement. He would further submit that suit is clearly barred by
limitation. No relief could have been granted in favour of plaintiff. In
support of his contention he relies upon following reported
judgments :
"(i) Suraj Narain Kapoor and Others Vs. Pradeep Kumar
& Others,1
(ii) Vanchalabai Raghunath Ithape (Dead) by Lrs. Vs.
Shankarrao Baburao Bhilare (Dead) by Lrs. &
Others,2
(iii) Tamboli Ramanlal Motilal (Dead) Vs. Ghanchi
Chimanlal Keshavlal (Dead) by Lrs. & Another, 3
(iv) Nana Tukaram Jaikar Vs. Sonabai & Others, 4
(v) Vamanrao Sawalaram Bhosale & Others Vs. Vithal
Tukaram Kadam & Another,5
(vi) Dharamji Shankar Shinde & Others Vs. Rajaram
Shripad Joshi (Dead) Through Lrs. And Others,6
(vii) Sopan (Dead) Through his Lrs. Vs. Syed Nabi, 7
(viii) Chunchun Jha Vs. Ebadat Ali and Another.8"
6. Per-contra, Mr. R.B.Temak, learned Advocate appearing for
1 2017 SCC Online SC 1246,
2 (2013) 7 SCC 173,
3 AIR 1992 SC 1236,
4 AIR 1982 Bombay 437,
5 2006( 1) Mh.L.J. 867,
6 2019) 8 SCC 401,
7 (2019) 7 SCC 635,
8 AIR 1954 SC 345.
5 sa549.17 judgment
respondent/plaintiff supports impugned judgment and decree.
According to him, title of document is not of any significance to decide
nature of transaction. Intention of parties has to be gathered having
regard to contents of document and attending circumstances. Both
fact finding Courts concurrently held that transaction between parties
was mortgage by conditional sale. According to him, no substantial
question of law arises for consideration in this appeal. In support of
his contention he relies upon following judgments :
"(i) Vishwanath Dadoba Karale Vs. Parisa Shantappa
Upadhye,9
(ii) Lohia Sheet Products Vs. Commissioner of
Customs,10
(iii) Patel Ravjibhai Bhulabhai (Dead) Through Lrs. Vs.
Rahemanbhai M. Shaikh (Dead) Through Lrs.,11
(iv) Vithal Tukaram Kadam and Another Vs. Vamanrao
Sawalaram Bhosale and Others, 12
(v) Ganpati Babji Alamwar (Dead) by Lrs. Vs.
Digambarrao Venkatrao Bhadke, 13
(vi) Sushilabai Radhakisan Bhagwat and Others Vs.
Laxman Balwant Kalaskar, 14
(vii) Madhavan Nair Vs. Bhaskar Pillai (Dead) by Lrs."15
7. Having considered submissions advanced, apparently
controversy between parties revolves around interpretation of
registered document dated 04.05.1970 executed by plaintiff in favour
of defendant. Plaintiff is coming with a case that intention of parties
was to create mortgage with conditional sale, whereas, defendant
contends that it was absolute sale with condition to re-purchase. So
9 (2008) 11 SCC 504
10 (2008) 11 SCC 510
11 (2016) 12 SCC 216
12 (2018) 11 SCC 172
13 (2019) 8 SCC 651,
14 2005 (4) LJSOFT 165
15 2003 SCC Online SC 889
6 sa549.17 judgment
as to decide nature of transaction between parties, following contents
of documents are relevant. Firstly, document is titled as sale with
condition to re-purchase. It stipulates as under :
"'krZ [kjsnh[kr ekSTks nsoGkyh ;sFkhy tehuhps :i;s rhu gtkj ikp'ksps :-
3500@& rkjh[k 04-05-1970 eqnr o"kZ 12
--".kyky larjke esanqz jk- nsoGkyh & fygwu ?ks.kkj
l[kkjke nxMw >kacjs jk- EkkSts fpapfoghjs & fygwu ns.kkj
dkj.ks 'kRkZ [kjsnh[kr fygwu nsrks dh es- lc jftLVªkjlkgsc jkgwjh ;kaps le{k
jks[k :i;s rhu gtkj ikp'ks 'ksrhps [kPkkZdjhrk ikoys rdzkj jkfgyh ukgh- ;k :i;k
,soth ek>s oMhykthZr ekydh ofgokVhph tehu lnjps :i;kl 'krZ [kjsnh nsrks rh
rqdMh vgenuxj iksV rqdMh o rkyqdk jkgqjh iSdh nsoGkyh ;k xkops f'kokjkrhy
tehu ljdkjh ftjk;rlOgsZ dz- 194@2 iSdh if'pesdMhy 2 ,dj 17 xqaBs]
iqosZl & lOgsZ dz- 194@2 iSdh] nf{k.ksl lOgsZ dz- 189] if'pesl lOgsZ dz- 192
vkf.k mRrjsl lOgsZ dz- 193@3 tehu nljps :i;kr 'krZ [kjsnh nsmu vkt jksth
tehu rqeP;k rkC;kr fnyh vkgs- rjh lnj tehuhpk ljdkj lkjk nsr tkok- lnjPks
nLr,sotkph v'kh 'krZ vkgs dh] rqeps :i;s lkMs fru gtkj vkt iklwu ckjk
o"kkZP;k vkr nsowu eh vkiyh tehu lksMwu ?ksbZu- tj rls ukgh dsys rj gs dk;e
[kjsnh [kr letwu ofgokV o miHkksx ?ksr tkok- rqeps ofgokVhl o miHkksxkl
dks.kkph gjdr vkY;kl R;kps fuokj.k dh djhu- rqEgkl rks"khl ykxw ns.kkj ukgh-
gs 'krZ [kjsnh [kr fygwu fnys-"
Translated as :
"Conditional Sale Deed of the land at village Devlali for the
consideration of Rs. Three Thousand Five Hundred only, Rs. 3,500/-
dated 4-5-1970 for the term of 12 years.
[BETWEEN]
Krishnalal Santram Mendru, R/o Devlali ---- First Party
AND
Sakharam Dagdu Zambre, R/o Chinchvihire --- Second Party
The Second Party do hereby executes this Conditional Sale
Deed that, Received Rs. Three Thousand Five Hundred for the
agricultural expenes in presence of the Hon'ble Sub-Registrar, Rahuri
and no grievance remained. In lieu of the money, I sell the land on
condition, that is ancestral one and under my easement. The land is a
part and parcel of the Registration District of Ahmandnagar,
Registration Sub-District of Rahuri Taluka and within the vicinity of
Devlali village, bearing Agricultural Land Survey No. 194/2
admeasuring 2 Acres and 17 gunthas and [the land is bounded by]
Towards East- Survey No. 194/2 Part, Towards South- Survey No.
189, Towards West- Survey No.192 and Towards North- Survey No.
193/3. The possession of the land is handed over to you on
conditional sale against the consideration [above mentioned]. You
7 sa549.17 judgment
shall pay the agricultural cess [henceforth]. The condition of the sale
is that, I shall repay your Rs. Three Thousand and five hundred to
you within 12 years from today and then get the land released from
you. If I fail to do so, treat this conditional sale deed as a perpetual
sale deed and enjoy the fruits of land and easementary rights. I shall
be responsible for removing obstacle, if any, created by anyone for
your enjoyment and easement of the land without any cost to you.
Hence this Conditional Sale Deed."
8. Plain reading of aforesaid document shows that plaintiff is
an agriculturist. He obtained amount of Rs. 3,500/- for agricultural
expenses from defendant and handed over possession of 2A 17R land
to defendant. In last 3 lines, plaintiff stated that after repayment of
amount of Rs. 3,500/-, within a period of 12 years, he shall redeem
his land, however, on failure, it would be absolute sale. There is no
condition that plaintiff would re-purchase land, but he would redeem
land by repaying advanced money within a period of 12 years.
Therefore, although first part of document stipulates that it is
conditional sale, there is no condition of re-purchase. The condition
is for redemption after paying money.
9. One more glaring fact surfaced on record is that when
plaintiff issued notice dated 16.08.2006, calling upon defendant to
accept money and redeem the mortgage, he replied on 31.08.2006,
stipulating that "it was a mortgage, however, because of non refund of
mortgage money, right of redemption has been elapsed as time
barred, hence, defendant acquired absolute title of suit property."
10. Mr. M.B. Patekar, relied upon various judgments, which
are decisions on its own facts and reiterates that clauses of deed
8 sa549.17 judgment
consistent with expressed intention of making transaction, is to be
gathered from contents of documents and surrounding
circumstances. In case of Dharmaji Shinde (supra), Supreme Court
observed in paragraph No. 13 reads thus :
"As per the proviso to Section 58 (c), if the sale and
agreement to repurchase are embodied in the
separate documents then the transaction cannot be
a "mortgage by conditional sale" irrespective of
whether the documents are contemporaneously
executed; but the converse does not hold good.
Observing that the mere fact that there is only one
document, it does not necessarily mean that it must
be a mortgage and cannot be a sale."
11. In case Chun Chun Zha Vs. Ebadat Ali (supra),
Constitutional Bench of Supreme Court, it is observed in paragraph
No. 5 reads thus :
"5. The question whether a given transaction is a
mortgage by conditional sale or a sale outright with
a condition of repurchase is a vexed one which
invariably gives rise to trouble and litigation. There
are numerous decisions on the point and much
industry has been expended in some of the High
Courts in collating and analyzing them. We think
that is a fruitless task because two documents are
seldom expressed in identical terms and when it is
necessary to consider the attendant circumstances
the imponderable variables which that brings in its
train make it impossible to compare one ease with
another. Each must be decided on its own facts.
But certain broad principles remain."
12. In case of Ganpati Babji (supra) Supreme Court observed
in paragraph No. 12. Paragraph No. 12 reads thus :
9 sa549.17 judgment
"An agriculturist will normally not so easily dispose
of his agricultural land, the source of his survival
and livelihood merely for purchases made by him
on credit. The dire financial straits of the plaintiffs
are evident from the fact that they were left with no
option but to mortgage 2 & ½ ac of their
agricultural lands for credit purchase of daily
necessities."
13. Looking to the aforesaid observations and expositions of
law, concurrent findings recorded by Courts below appears to be in
consonance with legal position that holds field. Apparently, title of
document is not decisive or significant to decide nature of transaction.
Intention of parties can be gathered only on basis of stipulation and
other surrounding circumstances. In present case, construction of
document nowhere suggest that plaintiff wanted to transfer his land
reserving rights to re-purchase same by repaying consideration
amount. What transpires is that plaintiff was in dire need of money to
satisfy his agriculture expenses. He put defendant in possession of
land reserving his rights of redemption by making re-payment of
advances within a period of 12 years. Document nowhere suggest
that plaintiff reserved his right to re-purchase or defendant agreed to
execute sale deed in favour of plaintiff after receipt of sum, equal to
the consideration amount. Apart from contents of document in
response to legal notice, defendant has clearly stated that mortgage
deed was executed between parties and plaintiff failed to redeem his
land within stipulated period, which suggests that transaction was
mortgage by conditional sale and not sale with condition of re-
10 sa549.17 judgment
purchase. No perversity can be found in interpretation adopted by
Courts below. In that view of the matter, no substantial question of
law arises for consideration in this appeal. The Second Appeal stands
dismissed.
14. In view of dismissal of Second Appeal, pending Civil
Applications stand disposed off.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
15. After pronouncement of judgment a request is made to
continue interim relief, since the appellant wish to approach Hon'ble
Supreme Court.
16. Considering request advanced and nature of dispute,
interim relief as granted earlier shall remain in force for a period of
four weeks from today.
( S. G. CHAPALGAONKAR )
JUDGE
mahajansb/
